On July 1, 1997, a 24 year old woman, pregnant at seven months with her first baby, went into precipitous labor at home. Lucia Ferreira and her husband had been excited about the birth of their first child (a girl) but tragedy was about to unfold – the baby was in a footling breech position and her head became stuck in the birth canal.
With no oxygen or blood able to get through the umbilical cord, the baby asphyxiated and was pronounced dead on arrival at the hospital.
A lawsuit followed – Ferreira v. Wyckoff Heights Medical Center (Civil Court, Kings County, Index # 1449/02) – in which it was claimed that plaintiff had been improperly evaluated and treated at the Brooklyn hospital when she’d presented there several times complaining of abdominal pain (due to premature labor) the week before the stillbirth (including three times the day before without being admitted).
After a 10 day trial in November 2006, the jury found that the hospital had committed malpractice in sending Ms. Ferreira home just 24 hours before her baby’s death. Plaintiff argued that the breech position should have been detected and she should have been admitted and treated for premature labor and/or a Cesarean section could have been performed to deliver a healthy baby. The jury agreed and she was awarded $1,000,000 for her emotional distress injuries (past – 8 years, future – zero).
The defendant appealed claiming that the pain and suffering award was excessive. Now, in Ferreira v. Wyckoff Heights Medical Center (2d Dept. 2011), the appellate judges upheld the liability verdict against the defendant and sustained the propriety of $1,000,000 for pain and suffering. As to the verdict amount, they merely stated that the award "does not deviate from what would be reasonable compensation."
We have uncovered the details as to plaintiff’s pain and suffering claim:
- pathological bereavement
- post-traumatic stress disorder
- significant depression
The defense argued that the award was improperly fueled by compassion and sympathy and was excessive because plaintiff:
- never sought any mental health treatment after only a single counseling session a month after the incident, and
- recovered, as evidenced by her successful return to full-time work in a collection agency in 2000 and the birth of a healthy child in that year
Plaintiff countered, though, with the fact that she treated only once because she could not afford counseling fees and because she found it too painful to talk about and thereby relive the horrible event.
She also presented expert testimony from a psychiatrist who stated that his diagnosis of pathological bereavement was based on his examination of Ms. Ferreira, his review of all of the medical records and on Ms. Ferreira’s eight years of carrying around and displaying two photographs of her deceased daughter taken after resuscitation efforts failed. He recommended ongoing psychiatric treatment.
There was no case law cited in the appellate court decision as to prior similar injuries and that’s because, in stillborn cases, until 2004, damages for a mother’s emotional distress were not recoverable without an independent physical injury to the mother. The Court of Appeals, in Broadnax v. Gonzalez (2004), changed the law to allow emotional distress damages without physical injury to the mother.
The $1,000,000 emotional distress damages award that was sustained in Ferreira v. Wyckoff Heights Medical Center is significant for two reasons:
- it’s the first time this New York appeals court was asked to review a pain and suffering award made to a plaintiff for emotional injuries sustained as a result of a stillbirth; and,
- the court declined to reduce a substantial verdict in a case in which there was a paucity of objective proof of the injuries
- Since Ms. Ferreira’s case was brought before the law changed, her initial claim was for wrongful death damages (e.g., the baby’s short-lived physical pain) on the theory that her baby was born alive. When she changed her theory – arguing instead that her baby was stillborn – the defense objected but to no avail.
- In 2005, one of defendant’s in-house lawyers penned a provocative article entitled, "The Medical Malpractice Crisis, Again." And one of defendant’s arguments on appeal was that to permit the $1,000,000 pain and suffering award for this newly allowed emotional distress damages claim would have a materially detrimental impact on New York’s health care crisis. The appellate court judges did not discuss these issues.
- The jurors found that Ms. Ferreira was negligent because she failed to seek further medical treatment after her return home from the hospital about 24 hours before the stillbirth but that they then found that her negligence was not a substantial factor in bringing about the premature delivery and death of her baby. The defense argued (unsuccessfully) that these two findings are inconsistent and require reversal of the verdict. The appellate judges rejected this argument because had plaintiff been admitted to the hospital the day before (and not sent home) the premature breech birth of the baby without medical intervention could have been prevented.
- Both sides were represented by appellate attorneys widely regarded as among the best in New York – Arnold E. DiJoseph for the plaintiff and Mauro Lilling Naparty LLP (formerly known as Mauro, Goldberg & Lilling) for the defendant.